Landmark ruling enhances parental rights over surrogacy time limit

Until now, strict conditions stated that an application for a parental order - which establishes the legal parents of the child - must be made within six months of the child’s birth.

In the case of child K today, the judge decided to use discretion to extend this time limit, making it more possible in future for couples to gain their status as legal parents outside the six-month time limit.

As head of the team representing child K, ACS’s children’s law specialist Jas Tamber explained that the significance of this judgement is far reaching.

He said: “Overseas surrogacy for UK couples involves complicated issues of international family law, which in many cases does not reflect the reality of the circumstances.

“A growing number of UK couples are seeking to create a family by making overseas surrogacy arrangements, often without the benefit of legal advice and any understanding of the difficulties that can arise.

“An order has the transformative effect of making a couple the legal parents of a child and removes surrogates rights.”

The result of today’s ruling means that in some circumstances it may be possible for parents to apply for a parental order after the six months’ limitation.

Mr Tamber continued: “The Court should be able to use this discretion in the cases of surrogate children whose parents have not already applied for parental orders.

“For example, this new ruling may apply to families who had children some time ago and are not aware that parental orders exist, where immigration issues have led to delays or that intended parents are simply not aware of the time limit rules.”

Given the exceptional and unusual aspects of child K’s situation, ACS instructed leading barrister Elizabeth Isaacs QC of St Ives Chambers to represent the child in court when the case was transferred to the President of the Family Division of the High Court of Justice in England and Wales.

Miss Isaacs is known for her expertise in complex care proceedings. She said: “This case is ground-breaking and has far-reaching implications for all areas of child law because not only does it extend the time limit for applying for parental orders, but it also affects how courts should interpret what may appear to be fixed legal time limits or definitions.”

This case sends a loud and clear message to encourage parental order applications to be made and promptly, urged Mr Tamber.

He added: “The legal relationship in this jurisdiction between children born as a result of international surrogacy arrangements and their intended parents is not on a secure legal footing without such an order being made.

“This can have long term legal consequences for the children and those who care for them.”

Rated by their peers and clients, the children and family law team at ACS are top-tier (West Midlands) recommended in Legal 500. They have five specialist panel lawyers and are regularly involved in critical and complex cases referred by CAFCASS, other law firms and the judiciary.